A press release issued today by the U.S. Department of Education announced the department’s proposal on improving schools’ responses to sexual harassment and assault. The proposed regulation under Title IX, the federal civil rights law that prohibits discrimination on the basis of sex in education programs or activities that receive federal funding, was developed after more than a year of research, deliberation, and gathering input from students, advocates, school administrators, Title IX coordinators, and other stakeholders.
- The proposed rule would require schools to respond meaningfully to every known report of sexual harassment and to investigate every formal complaint.
- The proposed rule highlights the importance of supportive measures designed to preserve or restore a student’s access to the school’s education program or activity, with or without a formal complaint. Supportive measures may include the following:
- Academic course adjustments
- No-contact orders
- Dorm room reassignments
- Leaves of absence
- Class schedule changes
- Where there has been a finding of responsibility, the proposed rule would require remedies for the survivor to restore or preserve access to the school’s education program or activity.
- The proposed rule would require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to “rape shield” protections.
- Colleges and universities would be required to hold a live hearing where cross-examination would be conducted through the parties’ advisors. Personal confrontation between the complainant and respondent would not be permitted.
- To promote impartial decisions, schools would not be allowed to use a “single investigator” or “investigator-only” model.
- Under the proposed rule, if a school chooses to offer an appeal, both parties can appeal.
- Consistent with U.S. Supreme Court Title IX cases, the proposed rule defines sexual harassment as unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.
- The proposed rule adopts the Clery Act definition of sexual assault and includes it in the definition of sexual harassment under Title IX.
The Department’s proposed Title IX rule will be open for public comment for 60 days from the date of publication in the Federal Register.
To view the Department’s one page summary of the proposed Title IX rule, click here.